RAVISH R. RATHI, MUMBAI V. DCIT CIR 14(1), MUMBAI

ITA 5095/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2153 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2002-2003
• Appeal Filed On: 07-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T T JACOB
• Keywords: Search and seizure; Document seized; Documents seized; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SMT.ASHA VIJAYARAGHAVAN , JM ITA NO.5091/MUM/2009 : ASST.YEAR 1999-2000 ITA NO.5092/MUM/2009 : ASST.YEAR 2000-2001 ITA NO.5093/MUM/2009 : ASST.YEAR 2000-2001 ITA NO.5094/MUM/2009 : ASST.YEAR 2001-2002 ITA NO.5095/MUM/2009 : ASST.YEAR 2002-2003 SHRI RAVISH R.RATHI 4, SITAL SAGAR, 1 ST FLOOR, SITAL BAUG 64, WALKESHWAR ROAD, MUMBAI 400 006 PA NO.AFGPR4733L. VS. THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 14(1) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAKESH JOSHI RESPONDENT BY : SHRI T.T.JACOB O R D E R PER R.S.SYAL, AM : THIS BATCH OF FIVE APPEALS BY THE ASSESSEE TWO A GAINST THE UPHOLDING OF PENALTY U/S.271(1)(C) IN RELATION TO THE ASSESSMEN T YEARS 1999-2000 AND 2000- 2001, TWO AGAINST THE UPHOLDING OF PENALTY U/S.271B IN RELATION TO THE ASSESSMENT YEARS 2001-2002 AND 2002-2003 AND ONE AGAINST UPHOL DING OF PENALTY U/S.271D IN RELATION TO THE ASSESSMENT YEAR 2000-2001. FOR THE SAKE OF CONVENIENCE WE ARE CLUBBING THESE APPEALS FOR THE PURPOSES OF DISPOSA L. 2. FILTERING OUT UNNECESSARY DETAILS IT IS NOTICED THAT A SEARCH AND SEIZURE ACTION WAS CONDUCTED ON MOTILAL OSWAL GROUP OF CASES ON 2. 8.2003 WHEREIN THE OFFICE PREMISES BELONGING TO SHRI SUKHDEV AGARWAL WERE AL SO COVERED UNDER THE SEARCH WARRANT. AS PER THE STATEMENT OF SHRI SUKHDEV AGARW AL, RECORDED DURING THE COURSE OF SEARCH PROCEEDINGS, IT WAS FOUND THAT MOST OF TH E SEIZED DOCUMENTS FOUND AT HIS PREMISES BELONGED TO THE ASSESSEE. PROCEEDINGS WERE INITIATED BY WAY OF NOTICE U/S.153C ASKING THE ASSESSEE TO FILE RETURN OF INCO ME. DUE TO THE COMPLEXITIES ITA NOS.5091 TO 5095/MUM/2009 SHRI RAVISH R.RATHI. 2 INVOLVED IN THE ANALYSIS OF SEIZED DOCUMENTS FILED AND OTHER MATERIAL AND ALSO CONSIDERING THE FACT OF NON-FILING OF RETURNS BY TH E ASSESSEE, DIRECTION UNDER THE PROVISIONS OF SECTION 142(2A) WAS ISSUED TO THE ASS ESSEE REQUIRING HIM TO GET THE ACCOUNTS AUDITED BY M/S.BILLIMORIA MEHTA & CO., CHA RTERED ACCOUNTANTS. ON THE RECEIPT OF SUCH AUDIT REPORT AS WELL AS THE MATERIA L FOUND DURING THE COURSE OF SEARCH, THE ASSESSING OFFICER FRAMED THE ASSESSMENT . FOR THE ASSESSMENT YEARS 1999-2000 AND 2000-2001 THE ASSESSING OFFICER IMPOS ED PENALTY U/S.271(1)(C). 3. THE AUDIT CONDUCTED BY M/S.BILLIMORIA MEHTA & CO ., CAS REVEALED THAT THE TURNOVER OF THE ASSESSEE EXCEEDED THE LIMIT OF RS.4 0 LAKHS FOR ASSESSMENT YEARS 2001-2002 AND 2002-2003. ON THE BASIS OF SUCH TURNO VER REPORTED BY THE AUDITOR, THE ASSESSING OFFICER IMPOSED PENALTY U/S.271B OF T HE ACT. 4. THE ASSESSING OFFICER OBSERVED FOR THE ASSESSMEN T YEAR 2000-2001 THAT THE ASSESSEE HAD TAKEN CASH LOANS OF RS.2,50,000 WHICH WERE IN CONTRAVENTION OF PROVISIONS OF SECTION 269SS. RESULTANTLY, PENALTY U/S.271D WAS IMPOSED FOR THE EQUAL AMOUNT OF RS.2,50,000. 5. THE ASSESSEE CHALLENGED THESE FIVE PENALTY ORDER S PASSED BY THE ASSESSING OFFICER BEFORE THE LEARNED CIT(A). CERTAIN NOTICES WERE ISSUED BY THE LEARNED FIRST APPELLATE AUTHORITY, THE DETAILS OF WHICH HAVE BEEN RECORDED IN THE IMPUGNED ORDERS. THE ASSESSEE FAILED TO TURN UP BEFORE THE L EARNED FIRST APPELLATE AUTHORITY, WHO VIDE HIS SEPARATE ORDERS, ALL DATED 14 TH JULY, 2009, DISMISSED THE APPEALS, AGAINST WHICH THE ASSESSEE HAS COME UP BEFORE US. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD IT IS FOUND THAT THE LEARNED CIT(A) UPHELD T HE PENALTY ORDERS DUE TO NON- ATTENDANCE BY THE ASSESSEE AND THE ASSESSING OFFI CER. THE LEARNED A.R. SUBMITTED THAT THE PROCEEDINGS COULD NOT BE ATTENDED BEFORE T HE LEARNED CIT(A) FOR THE REASONS BEYOND THE ASSESSEES CONTROL. IT WAS, THER EFORE, PRAYED THAT ONE MORE ITA NOS.5091 TO 5095/MUM/2009 SHRI RAVISH R.RATHI. 3 OPPORTUNITY BE GRANTED FOR PUTTING FORTH THE CASE P ROPERLY BEFORE THE LEARNED FIRST APPELLATE AUTHORITY. THE LEARNED DEPARTMENTAL REPRE SENTATIVE DID NOT RAISE ANY OBJECTION TO IT. IN VIEW OF THESE RIVAL BUT COMMON SUBMISSIONS WE SET ASIDE THE IMPUGNED ORDERS AND RESTORE THE MATTER TO THE FILE OF THE LEARNED CIT(A) FOR DECIDING THEM AFRESH AFTER ALLOWING REASONABLE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, ALL THE APPEALS ARE ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 14 TH DAY OF MAY 2010. SD/- SD/- ( ASHA VIJAYARAGHAVAN ) ( R.S.SYAL ) JUDICIAL MEMBER ACCOUNTANT M EMBER MUMBAI : 14 TH MAY, 2010 . DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENTS. 3. THE CIT CONCERNED 4. THE CIT(A) - XIV, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.